Category: News Feeds

There seems to be some confusion about the difference between Colin Kaepernick settling his collusion grievance with the National Football League before an arbitrator could rule on the merits, and Jay-Z allowing the NFL to paint itself in Hovaface in exchange for some Super Bowl money. The mischaracterization seems to be: Kaep “took the money” and Jay-Z took the money, so it’s all the same and so now let’s get READY FOR SOME FOOTBAW!!!

Here’s wide receiver Dez Bryant stumbling into the confusion:

You see this a lot from people who don’t understand how the legal system works. In the common parlance, “settlement” connotes “weakness.” You “settle” when you can’t get what you “really” want. You “settle” when somebody names your price. You “settle” when you punt on 4th-and-1 when you are losing late in the game (which, honestly, is pathetic). Winners win, losers settle.

Thinking that way is not Dez’s fault. He went to school to learn how to catch footballs, I went to school to learn how to debate the definition of a “catch” into total absurdist obfuscation. I got you, Mr. Bryant.

Simply put, the colloquial understanding of “settlement” has no place in the law. Many aspects of the legal system are designed, specifically, to encourage legal settlements. A legal settlement is not an admission of defeat, it’s not “selling out.” It’s just the outcome the system is designed to produce. And, of all of those designs, none work as well as “forced arbitration.” Forced arbitration is entirely about making people settle their grievances before an arbitrator makes an “all or nothing” ruling.

It’s that forced arbitration process that Kaepernick’s collusion grievance was subjected to. Let’s start with the obvious: Kaepernick accused all 32 NFL teams of colluding to keep him out of the league. However, in order to “sue” the NFL for collusion, the only thing Kaepernick could legally do was file a grievance and subject himself to arbitration. That was the only process available, because that’s what is laid out in the collective bargaining agreement between the NFL and the NFL Players Association. A football player cannot just sue the NFL in civil court, without first going through this process. That’s just how the law works. Kaepernick didn’t “give up” his right to sue the NFL, the Player’s Association gave up that right for him, and there was nothing he could reasonably do about it.

Kaepernick filed his grievance, under the terms of the NFL collective bargaining agreement, and that meant his case would be heard by an arbitrator. Think of an arbitrator like a guy whose only tool is a hammer. If you have some exposed nails, it’s going to work out. But if you have any other problem, you might want to fix it yourself before the guy with a hammer shows up and starts knocking things over.

Over the course of the arbitration, it appears that Kaepernick and his legal team were able to bring enough evidence to light to reasonably support their claim that the NFL colluded against him. We don’t know what that evidence was, because arbitration proceedings are secret. Again, this is the legal system favoring a process where parties can settle without having to “admit” any fault, as opposed to a process where parties are boxed into defending embarrassing evidence.

Understand, collusion cases are notoriously hard to “prove.” How can you prove why a thing didn’t happen? It’s almost like trying to prove a negative. Still Kaepernick and his team got it done. The NFL collective bargaining agreement is notoriously crappy for the players. Kaepernick, and fellow NFL player Eric Reid, filed their grievance in October, 2017. In August, 2018, the court dismissed the NFL’s motion for summary judgement. This was crucial. It meant that, according to the arbitrator, Kaepernick and Reid had made enough of a showing that collusion might have happened that his legal team could continue gathering evidence and making their case. Surviving the motion for summary judgement was a major victory for the players.

That’s also why the NFL went into settlement mode. A ruling in the players favor would have made Kaepernick and Reid eligible for treble damages: that’s all the money they would have made, times three. Plus the arbitrator’s ruling would have included likely damaging details about the NFL’s attempts to blackball Kaepernick. There may have been calls for complicit owners to sell their teams. NFL Commissioner Roger Goodell could have easily been fired for allowing such a public relations disaster to occur on his watch.

OR… the players could have gotten NOTHING. In order to encourage settlements, the arbitrator in this case was only empowered to rule completely on the side of the players, or completely on the side of the owners. There was no in-between. There was no “moderation.” Either Kaep and Reid get everything they want, or they get nothing.

Except that even if they won, Kaepernick and Reid wouldn’t have gotten everything they wanted. What they wanted was to play football. These men have any extremely short amount of time where they are physically capable of doing that. Reid signed during the proceedings, but was also trying to get a new, lucrative contract. Kaepernick just wants a damn try-out. Even if they had won their arbitration and “proved” that the NFL colluded against them, the court had no power to force the NFL to sign them. All the arbitrator could do, all it could ever do, was punish the NFL for its possible collusion. That punishment was always going to be doled out in dollars and cents, not right and wrong.

That’s why the players took the settlement offer once the NFL made a reasonable one. They had taken their case as far as it could go without it being subjected to the random wheel of an all-or-nothing judgement. Even in defeat, the NFL would not have “admitted wrongdoing.” It would not have been forced to re-hire Kaepernick or allow other players to protest or kneel for social justice. It just would have paid Kaepernick $X million dollars, instead of $Y million dollars. The larger point, that the NFL did Kaep dirty, should have been proved in the court of public opinion when the NFL lost its motion to dismiss. Winning the heart and mind of an arbitrator is, you know, kind of an arbitrary standard in a system where the arbitrator’s primary role is to scare parties into settlement negotiations.

Every lawyer on the planet would have advised Kaepernick to take the settlement. Only a very bad client would ignore this advice.

Now that you understand what Kaepernick did, and why, let us turn our attention to Shawn Corey Carter. From Vox:

On August 13, the NFL announced that it was entering a partnership with Roc Nation, the entertainment company founded and led by rapper and mogul Jay-Z. The deal, which has reportedly been in the works for several months, means that Roc Nation will now help “advise on selecting artists for major NFL performances like the Super Bowl.”

While the deal effectively gives Jay-Z a major role in developing one of the most-watched concerts in the country, it also includes a social justice partnership between the rapper and the NFL. Roc Nation, the NFL adds, will play an important role in the NFL’s recently launched “Inspire Change” initiative, a collaboration between the NFL and the Players Coalition, a group of NFL players seeking to advance social and racial justice. The initiative focuses on three causes in particular: “education and economic advancement; police and community relations; and criminal justice reform.”

Both parties say the deal is an important step forward in indicating the NFL’s strong commitment to helping marginalized communities. “With its global reach, the National Football League has the platform and opportunity to inspire change across the country,” Jay-Z said in a statement this week. “This partnership is an opportunity to strengthen the fabric of communities across America.”

Comparing what Kaepernick did to what Jay-Z is doing is unmitigated BS. Kaepernick took the NFL to court, in the only manner he was legally allowed to do, to highlight their unfair labor practices towards black people. Jay-Z is making a deal to supply the NFL with more black labor. Kaepernick and Reid took the NFL to the bank as punishment for their mistreatment of them. Jay-Z is making bank off the “social awareness” that Kaepernick shamed the NFL into showing. Kaepernick settled to avoid a time consuming legal process that could have left him zero dollars for the ruins of his NFL career. Jay-Z made a deal that allows him, but not Kaepernick, to capitalize off of the ruins of Kaepernick’s NFL career. Kaepernick did the right thing by following all the rules to demand accountability for the NFL’s actions. Jay-Z is doing the wrong thing to help the NFL avoid accountability.

I reached out to Kaepernick’s lawyer, Mark Geragos — who did the hard legal work of actually fighting the NFL on Kaepernick’s behalf, something that Jay-Z is evidently no longer interested in doing — for his thoughts on the Jay-Z deal. He said simply: “That was cold-blooded.”

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

According to the ABA Commission on Women In The Profession, what percentage of general counsels of Fortune 500 companies are women as of 2018?

Hint: The number may not be great, but back in 2000, it was a depressingly small 9 percent.

See the answer on the next page.

The next generation of the bar exam is coming. Well, hopefully.

The National Conference of Bar Examiners (NCBE) released its Testing Task Force’s Phase 1 report this week. The report summarizes what people throughout the legal profession think about the current licensing process and exam. While readers will not be surprised by the general sentiments — people are generally dissatisfied with the current bar exam — they may be surprised that the NCBE published such forceful critiques.

But first some background.

The NCBE is the nonprofit organization that state regulators in all U.S. jurisdictions outsource between some and a lot of the work that goes into determining whether someone should receive a law license. The NCBE is the group behind the Multistate Professional Responsibility Exam (MPRE), Multistate Bar Exam (MBE), Multistate Essay Exam (MEE), and the Multistate Peformance Test (MPT). The NCBE also coordinates the Uniform Bar Exam (UBE), a compact among 36 jurisdictions to uniformly administer, grade, and score the MBE, MEE, and MPT. A test-taker’s results can then be transferred to any of the other UBE jurisdictions. Each state still sets its own passing score, so you can pass the UBE in one state but not another.

The NCBE created its Task Force as part of its efforts “to sustain confidence by all stakeholders in the testing process.” While some consternation stems from falling bar pass rates, legitimate criticism of the exam’s validity from some of legal education’s best thinkers has plagued the bar exam for several decades. That is, the exam may not measure what it says it does: whether an individual is minimally competent to practice law.

From my conversations with NCBE’s new leadership over the past few years, they are deadly serious about the exam’s validity. The Testing Task Force’s transparent process is a tacit acknowledgment that the NCBE has not listened very well in the past, and that there are meaningful questions about how the exam measures minimum competence.

Phase I involved listening sessions with lawyers, judges, examiners, and educators. Phase II involves a practice analysis to “gather current, empirical data on the knowledge, skills, abilities, other characteristics, and technologies that newly licensed lawyers use to accomplish the job tasks they perform.” Phase III will involve turning the results of Phase I and II into exam design recommendations by the end of 2020.

(If you practice law, go take the 20 minute practice analysis survey.)

That brings us to the Phase I report and some common threads throughout all the listening sessions.

• The exam tests both too much and too little. That is, it should emphasize more lawyering skills and less subject matter knowledge.
• The exam should utilize more writing, less multiple-choice, and additional methods like simulation.
• Jurisdictions should consider breaking the exam into different parts over more than just a few days.

The report also includes notes for each session. The following bullets are directly from the report but paraphrased from attendees.

• “The MEE is the least valuable component of the bar exam because it is not realistic: it requires answering short essays based upon memorization of the law, which is not consistent with how lawyers practice (e.g., with access to electronic databases like Westlaw or LexisNexis)”
• “The inconsistent passing scores implemented across states raise questions about the legitimacy of exam results; states need to agree on a definition of minimum competence”
• “The MBE tests arcane, obscure, or trivial aspects of the law that new practitioners should not be expected to know and are not reflective of minimum competence; the MBE tests too deeply on subjects; memorizing black-letter law for the MBE to answer multiple-choice questions (MCQs) does not mimic real practice because lawyers would look up the law and not rely only on memory in representing clients; too much focus on memorization; the MBE tests only memorization and no skills; the MBE questions are full of red herrings and intentionally tricky”
• “MCQs are not realistic or an effective way to test what lawyers do; if retaining MCQs for the MBE, reduce the number of questions or increase the amount of time allowed”

I’ve focused on these negative sentiments because they tell us something important about NCBE’s approach. Because NCBE paraphrased what session attendees said, it could have softened these remarks without anyone being the wiser. Session attendees also provided enough material that NCBE could have told a completely different story in its executive summary and declined to publish such extensive session notes.

Instead, the report showcases an array of dissatisfied stakeholders who directly question whether the exam actually measures minimum competence at all. Each of these critiques cut right to the heart of the bar exam itself. If the test methods and content are not effective or realistic or relevant to law practice, it’s difficult to imagine how the exam could be valid.

We operate in a world of standardized tests for some good reasons, and the bar exam is no exception. Not only do state regulators expect the exam to be valid, but also to be reliable and thus able to yield stable scores over time. Often, however, test-makers sacrifice validity for reliability because the principal means for achieving reliability is through multiple-choice questions that don’t quite reflect what people in the real world do. I’m hopeful that the bar exam of the future will focus significantly more on validity.

NCBE is not the only organization concerned about validity. I am working with a team of researchers on the Building a Better Bar project at the Institute for the Advancement of the American Legal System (IAALS) to explore the work that new lawyers do during their first year after licensing. We’re holding 60 focus groups in 12 states to shed light on the “minimum competence” that lawyers need to serve clients in a wide variety of practice settings. Our focus-group approach, we believe, will complement NCBE’s job analysis surveys.

The only fair reason to limit licensure to those who pass the bar is to protect the public. If the bar exam does not measure minimum competence, it needs to change or be eliminated. Fortunately the NCBE seems poised to oversee that change in the near future.

Kyle McEntee is the executive director of Law School Transparency, a 501(c)(3) nonprofit with a mission to make entry to the legal profession more transparent, affordable, and fair. You can follow him on Twitter @kpmcentee and @LSTupdates.